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Bribes, bombs, and outright lies

Pleading for the future: Clarence Darrow. Photo from Chicago History Museum/Getty Images.

by Deborah Lohse |

Legendary lawyer Clarence Darrow comes to campus—and shows that ethical issues raised in the Trial of the Century remain as vexing today as they did when spittoons lined the courthouse floor.

For all their complexity below the surface, the accusations against legendary lawyer Clarence Darrow in a 1912 trial were fairly straightforward: that he bribed jurors to win a case. Why? He had been defending John and Jim McNamara, a pair of labor activists accused of dynamiting the Los Angeles Times building amid a brutal battle between labor and management over the rights of workers to unionize.

So, first things first: Did Darrow bribe, or didn’t he? That was the question to be decided at The People v. Clarence Darrow a century ago—and reenacted at the Mayer Theatre in September as part of the Santa Clara University School of Law Centennial.

Darrow’s defense at trial at times focused less on his proclaimed innocence than on the profound unfairness of his prosecution. In a closing argument that spanned two days, he explained to jurors that he was despised by many anti-union merchants and owners, who would love nothing more than to “destroy the hopes of the poor and oppressed.” Many of those same merchants funded the prosecution of Darrow’s clients, the McNamaras. (These days, private funding of criminal prosecution is seen as an unacceptable conflict of interest and is largely outlawed.) Darrow saw the deck stacked against his clients, too.

“Suppose I did this bribery, suppose I did, then what?” Darrow asked in his closing argument. “Is there any civilized man on earth who would convict me under circumstances like that?”

Ethical undercurrents

The circumstances underlying the trial—which lasted three months in real life and four hours in its reenactment—featured numerous subplots, each of which mired defendant Darrow and his adversaries in tricky ethical territory that continues to trip up lawyers of goodwill a century later:

• Did the prosecution’s unfair advantage in resources and funding from biased sources make a fair trial for Darrow impossible?

• Was justice perverted by an immunity deal offered to a shady witness whose guilt was arguably greater than Darrow’s? In the Darrow reenactment, it was shown to great laughter that the actual briber and defense investigator, Bert Franklin—played with great knavishness by Santa Clara Law Dean Don Polden—had a bowler-full of reasons to try to implicate Darrow to save his own skin. As Darrow put it: “How much credit can you give to the word of a man who finds his liberty held before him as a bait for his testimony?”

• Did the political ambitions of the prosecutor make it impossible for him to view the alleged crimes of his high-profile defendant rationally? Darrow remarked vividly on this conflict in his autobiography: “A prosecutor hopes and expects to be judge, and after that he will aspire to be governor, then senator, and President … and there are no rungs in the ladder of fame upon which lawyers can plant their feet like the dead bodies of their victims.”

• How successful was Darrow’s arguably unethical appeal to the jury to view him not as a potential criminal, but as the victim of “as vicious and as cruel a plot to catch me as was ever used against any American citizen?” Darrow’s logic seems to invite what today is called “jury nullification,” whereby jurors ignore evidence and use their vote to redress inequities—in this case, between capitalists seeking to crush unions and “the working man” whom Darrow for 35 years staunchly defended.

Transparency, fairness, and cash

“It’s striking how some of the ethical battlegrounds in the Clarence Darrow trial 100 years ago have simply been moved to new ground today,” says SCU law professor Gerald Uelmen, who convened the reenactment, played the court clerk, and has written two lengthy papers on Darrow.

In real life, Uelmen was part of the legal team that defended O.J. Simpson. Duke University law professor Michael Tigar—who in the reenactment played Darrow’s defense counsel, Earl Rogers—defended Oklahoma City bomber Terry Nichols and accused Nazi John Demjanjuk. Uelmen and Tigar see myriad parallels between the Darrow trial and today’s legal landscape, including: denial of civil rights to terror suspects; political conflicts of interest that get ignored for “independent counsel”; black juries acquitting defendants known to face sentences many jurors consider unfair; forcible abductions of defendants from foreign jurisdictions; and the rampant provision of prosecutorial “deals” for witnesses, when defendants are legally forbidden from similarly inducing witnesses on their own behalf.

On the stand: Law School Dean Don
Polden as knavish private investigator
Bert Franklin. Illustration by Janet Hamlin.

Uelmen argues that the role of money in trials—including prosecutors and judges who must raise money to be elected, and the lack of funding for indigent defendants—remains the legal system’s biggest challenge, especially in death penalty cases. “The ultimate control over when the death penalty is used and when it is not is in the hands of elected prosecutors,” he says. Meanwhile, counties in states like California award public-defender contracts to the lowest bidder, often resulting in lawyers who plead every client guilty for expediency, he notes. “If every defendant had the resources that O.J. had, to spend $4 million to defend himself, we’d see a lot more acquittals.”

Tigar is currently writing a book on Darrow. “What this trial especially said to us is that, in times of intense social conflict, the system that calls itself justice requires our special vigilance,” he says. “We live today in a world where our government is telling us that some people are so bad we need to make sure we try them in front of a military tribunal, or that some people about whom we have ‘reliable reports’ need to be killed without any trial.”

But both Uelmen and Tigar said they are heartened, not chagrined, that the U.S. justice system continues to confront ethical challenges—and the law’s ability to constantly right itself is a testament to the durability of the system of trial by jury. “The jury is the most democratic institution we have in this country,” Uelmen says. “Picking 12 jurors at random and giving them the ultimate power to decide a criminal case—it’s pretty radical.”

“The values that our system proclaims are values designed to promote transparency and fairness,” Tigar says. “Every well-tried criminal case is a civics lesson for the jurors. And if it’s a fair trial, it’s a civics lesson for the community.”

The Darrow verdict

On Aug. 17, 1912, after only 40 minutes of deliberation, the jury in The People v. Clarence Darrow announced their verdict to acquit Darrow on the charge of attempt to bribe a juror. The prosecutor complained to the Los Angeles Times, “We simply could not overcome the damnable atmosphere that counsel on the other side created in the courtroom.” A second trial in 1913, in which Darrow was charged with attempted bribery in the case of a second juror in the same McNamara proceeding, ended in a hung jury that was said to be stuck at 8 to 4 in favor of a guilty verdict. Reports at the time said that prosecutors agreed not to retry Darrow on the condition that he never again practice law in California.

Darrow left the Golden State for good. Back in Chicago, he embarked on what became an astounding, two-decades-long second chapter in an already 35-year career, taking on some of the most profound civil and human rights cases in history: an effort to save the teen “thrill killers” Leopold and Loeb from the death penalty in 1924; a brilliant defense of John Thomas Scopes’ right to teach evolution in 1925; and in 1926, his consciousness-raising defense of Ossian Sweet, an African-American physician charged with murder for protecting his home against an all-white mob in Detroit.

Gerald Uelmen wrote, in an essay titled “Who is the Lawyer of the Century?” that: “There truly were two Clarence Darrows. The Clarence Darrow who should be offered to young lawyers as a role model is not the Clarence Darrow of 1912, who apparently succumbed to a momentary delusion that the end could justify the means. The Clarence Darrow who should be offered as a role model is the haggard, weary man who pleaded for the lives of Loeb and Leopold in 1924: ‘I am pleading for the future; I am pleading for a time when hatred and cruelty will not control the hearts of men, when we can learn by reason and judgment and understanding and faith that all life is worth saving, and that mercy is the highest attribute of man.’”

Winter 2012

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